[00:00:02] Speaker 00: Case number 17-3006, United States of America versus Marquette Murray, also known as Twin, also known as Kett, appellant. [00:00:11] Speaker 00: Mr. Smith for the appellant, Mr. Gwynn for the appellee. [00:00:18] Speaker 05: Happy Bill of Rights Day. [00:00:21] Speaker 05: Uh, okay. [00:00:23] Speaker 05: May it please the court, my name is Greg Smith, and as the Sixth Amendment appointed counsel, I represent Marquette Murray in this appeal. [00:00:31] Speaker 05: This court should vacate the judgment below and remand this case to another judge, because the government failed to follow the letter and spirit of its plea agreement with my client, and because Mr. Murray's appointed counsel was ineffective in representing him at sentencing. [00:00:45] Speaker 04: No person looking at this plea agreement would reasonably expect... Mr. Smith, can I just... I know this is like the tail wagging the dog question, but it's the appoint another judge part that I'm not sure about. [00:00:58] Speaker 04: Why would we need to appoint another judge even if we accepted everything you said? [00:01:06] Speaker 04: The judge below showed absolutely no misconduct, no failures, no nothing, right? [00:01:15] Speaker 04: So why would you need another judge? [00:01:17] Speaker 05: Simply because I think the essence of the argument is the government's recommendation should never be heard, and it's hard to unring the bell. [00:01:24] Speaker 05: If the government is recommending more than 30 months, it's hard to unring that bell. [00:01:27] Speaker 04: Do you think, Mr. Smith, that our district judges do not read D.C. [00:01:31] Speaker 04: Circuit opinions? [00:01:32] Speaker 04: I suppose not, Your Honor. [00:01:34] Speaker 04: If we write an opinion exactly the way you want, every district judge will know exactly what happened in this case. [00:01:40] Speaker 05: Fair enough, Your Honor. [00:01:45] Speaker 05: Moving on to the merits, then. [00:01:46] Speaker 05: No person looking at this plea agreement would reasonably expect the government, without seeking any upward departure or variance, was going to argue for a sentence of 33 months in prison if my client did nothing more than what the plea agreement itself required of it. [00:02:02] Speaker 05: In the plea agreement, the estimated guidelines range was a defined term, 24 months to 30 months. [00:02:09] Speaker 05: Yes, the government reserved to seek a sentence above the estimated guideline range based on 3553A factors, but their higher request here was not based on any upward variance requested under 3553A. [00:02:24] Speaker 05: The plea agreement also said that a sentence within that estimated guidelines range, in other words, within that 24 to 30 months, would constitute a reasonable sentence in light of all the factors set forth in 3553A. [00:02:38] Speaker 05: So if true and nothing changed, how is a 33-month sentence not greater than necessary here? [00:02:44] Speaker 01: So the plea agreement also said under estimated criminal history category, it says, and this is at JA 26, based upon the information now available to this office, your client has no criminal conviction. [00:02:57] Speaker 01: Accordingly, your client is estimated to have zero criminal history points. [00:03:01] Speaker 01: And then the 24 to 30 is explicitly based upon the agreed total offense level and the estimated criminal history category set forth above. [00:03:09] Speaker 01: And so the entire thing was predicated on the notion that [00:03:14] Speaker 01: the information now available to the office indicated that there were no criminal convictions. [00:03:20] Speaker 01: But everybody knew that if the pleas went forward as contemplated, there would be, or at least might well be, criminal convictions. [00:03:29] Speaker 01: I know that you have an argument about the order in which that would, whether sentencing would occur before the convictions came about, but just everybody kind of understood that that was a possibility. [00:03:39] Speaker 05: Your Honor, I disagree with that for this reason. [00:03:43] Speaker 05: What it said goes on to say in that point you referenced, it says your client acknowledges that if additional convictions are discovered during the pre-sentence investigation, here there were no new convictions discovered, there were only convictions manufactured. [00:03:59] Speaker 05: nothing was discovered that wasn't already known. [00:04:04] Speaker 05: It's not something that was unknown. [00:04:09] Speaker 03: And let me just... You're saying the information now available to the office included that they were going to be [00:04:15] Speaker 03: two more convictions were certain under this plea agreement? [00:04:19] Speaker 05: They knew it full well at the time, and they've now said that they wouldn't have allowed it to proceed in any other way. [00:04:24] Speaker 05: So in essence, what they had was an estimated guideline range that they put in the plea agreement that they claim was impossible. [00:04:33] Speaker 05: And that's problematic. [00:04:35] Speaker 05: I don't think that it's fair for the government to list an estimated guideline range that they now claim never could have happened. [00:04:43] Speaker 05: And let me just say, this was just three months here, admittedly. [00:04:48] Speaker 05: But in another case, it could be much more. [00:04:50] Speaker 05: Suppose this is a drug case with a first offender, but it was part of a global plea. [00:04:55] Speaker 05: And the government said, well, the estimated range is 57 to 71 months, for example. [00:05:02] Speaker 05: as part of the plea agreement, the defendant agreed to enter into two state pleas. [00:05:06] Speaker 05: And suddenly, the defendant is a career offender. [00:05:10] Speaker 05: Is that acceptable? [00:05:11] Speaker 05: And would you expect competent counsel there, who is suddenly seeing his client facing 200 plus months instead of 57 to 71 months, to just say, well, gee, that's too bad for the client. [00:05:24] Speaker 05: I guess there's nothing even to be said? [00:05:26] Speaker 03: Well, the challenge, I think, for you is that you have [00:05:31] Speaker 03: You have language that you may want to say is ambiguous, but you have to prevail under a plain error standard in this case? [00:05:39] Speaker 03: Yes, Your Honor. [00:05:40] Speaker 03: So where is it plain? [00:05:43] Speaker 03: in this settlement agreement that those, they had already factored in the other two convictions, or they were promising not to factor those into the criminal history. [00:05:55] Speaker 05: Well, I think part of our ineffectiveness argument is that no objection was raised. [00:06:00] Speaker 03: That's the ineffectiveness argument. [00:06:01] Speaker 03: I'm talking about the, I'm assuming you're giving up your argument that you can win on the merits, or are you? [00:06:07] Speaker 05: I guess what I would say is I think that this court, as a matter of oversight and policy, [00:06:12] Speaker 05: ought not to allow this to occur. [00:06:15] Speaker 05: You should not allow plea agreements to become potential traps to trick unwary defendants, whether it's here or in that career offender case. [00:06:23] Speaker 05: You shouldn't allow the government to include estimated ranges that they know that they know are impossible. [00:06:33] Speaker 05: You should hold them to the spirit [00:06:36] Speaker 03: of the plea agreements that they enter, and it's particularly true... In the spirit of the text, are you saying that on this text they knew they had to mean that range, knowing these other two were coming, or are you saying the text supports them, but we have to do this as a matter of policy and spirit? [00:06:54] Speaker 05: I believe it violated both the letter and the spirit because there were no new – there was nothing discovered after this plea was entered. [00:07:03] Speaker 05: The only thing that happened was that they found – was that plea agreements went forward or pleas weren't entered that they knew all along that they were going to insist we're going to go – we're going to have to be done before this federal sentencing as a part of the plea agreement. [00:07:23] Speaker 05: They gave this plea agreement to a defendant. [00:07:25] Speaker 05: Well. [00:07:28] Speaker 01: Can I ask you about your ineffective assistance claim? [00:07:31] Speaker 01: So I take it your argument is not that. [00:07:36] Speaker 01: the relief for that claim or even for your breach of the plea agreement claim is that the plea agreement should be set aside and there should be a new opportunity to determine whether a plea of guilty was in the defendant's interests given the possibility that the sentencing range would go up if the two forecast convictions came about as anticipated. [00:08:00] Speaker 05: Your honor, I think if necessary we would challenge the plea itself as well as the sentencing I think that the plea itself the plea agreement itself is is flawed if the government is not going to abide by its spirit and That's not what I'm just reading your conclusion. [00:08:17] Speaker 04: You didn't ask You're not asking to go to trial here. [00:08:21] Speaker 05: Are you your honor? [00:08:22] Speaker 05: I'm asking for a remand on the issue of ineffective assistance in your [00:08:28] Speaker 04: In your prayer for relief, it says, the judgment should be vacated, the case should be remanded for a new sentencing hearing, or an evaluation of whether [00:08:37] Speaker 04: provided an effective assistance of counsel. [00:08:39] Speaker 05: Yes, Your Honor. [00:08:40] Speaker 05: And on the latter, we would reserve the right to say that counsel never should have allowed a plea agreement to proceed that had an estimated range that was impossible and that the plea agreement itself is... That's a hard... But you're correct. [00:08:58] Speaker 05: If the government had simply asked for 30 months, which they acknowledged was reasonable in the plea agreement, [00:09:05] Speaker 05: But that doesn't mean that another sentence is unreasonable. [00:09:07] Speaker 05: We would not be here today and would not be complaining. [00:09:09] Speaker 01: Yeah, I mean, they might have acknowledged that that's reasonable, given what was contemplated by the argument. [00:09:13] Speaker 01: It doesn't necessarily mean that some other sentence isn't also a possibility and would also potentially be reasonable, too. [00:09:20] Speaker 01: Right. [00:09:21] Speaker 05: But if you abide by 3553A, Your Honor, which says it has to be not greater than necessary, and they're acknowledging that 30 months is reasonable, I don't see how [00:09:33] Speaker 05: More than 30 months is not greater than necessary. [00:09:35] Speaker 05: That argument was never made below, and it should have been. [00:09:38] Speaker 04: Your argument doesn't have to be whether it's reasonable or not. [00:09:42] Speaker 04: The question is whether it's reasonably likely to have led to a prison term that would be shorter. [00:09:50] Speaker 04: That's the prejudice test, right? [00:09:52] Speaker 04: I'm reading from our King Goer opinion [00:09:56] Speaker 04: Question isn't whether the defendant's prison term would have been drastically shorter, just whether it was reasonably likely the prison term would not have been as long. [00:10:04] Speaker 05: Yes. [00:10:04] Speaker 05: And then we're saying it's reasonably likely the prison term would not have been 33 months. [00:10:09] Speaker 04: So with that kind of relief, what you're asking for is to go back to re-sentencing with the judge, now knowing, either a new judge or the same judge, that the estimated [00:10:24] Speaker 04: sentencing guidelines were based on the government's full knowledge that there were going to be two intervening police. [00:10:33] Speaker 04: Yes, and see what and the question is, do we think it reasonably likely the judge might have then stuck to the estimated guidelines? [00:10:41] Speaker 04: That's right. [00:10:43] Speaker 05: Let me try to close by saying this. [00:10:50] Speaker 05: They gave this plea agreement to a defendant who was in the criminal justice system for the first time. [00:10:54] Speaker 05: It said 24 to 30 months. [00:10:56] Speaker 05: What do you think he's going to believe and think? [00:10:58] Speaker 05: What would anyone think? [00:11:00] Speaker 05: That is the deal, unless something new comes up, and not something new that the plea agreement itself was manufacturing, where the goalposts [00:11:10] Speaker 05: or basically being moved on a client through no fault of his own. [00:11:14] Speaker 05: That was just wrong. [00:11:15] Speaker 05: If the government expected or knew that two criminal history points were going to be added and if its plans were such that it was going to make that plus two inevitable, it shouldn't have written down an estimated range of 24 to 30 months that it knew was impossible and shouldn't have presented a plea agreement that essentially hit the ball. [00:11:32] Speaker 05: You should care about this for institutional reasons, but because I can tell you, there is no way to explain to my client how 24 to 30 months became 27 to 33 months. [00:11:43] Speaker 05: All this does is raise disrespect for our criminal justice system and distrust. [00:11:48] Speaker 05: It feels like a bait and switch, and may actually be a bait and switch here. [00:11:52] Speaker 05: Now, I don't want to impute their motives. [00:11:55] Speaker 05: Prosecutor is here. [00:11:56] Speaker 05: I respect her. [00:11:57] Speaker 05: We've worked together. [00:11:58] Speaker 05: My client is not here, but I want you to imagine what it's like for me to try to explain this to him because there is no way I can ever explain to a defendant or defendants mama how this is fair. [00:12:13] Speaker 05: The most reasonable construction of this plea agreement should be that the government can't argue for more than 30 months unless it provides a reason other than the plea agreement itself for why more is justified. [00:12:26] Speaker 05: That was the spirit of this plea agreement and even the letter of this plea agreement. [00:12:32] Speaker 05: I submit this case should be remanded. [00:12:37] Speaker 05: The Abney case is one where the ineffective assistance was found for counsel's failure to seek a continuance of a sentencing. [00:12:46] Speaker 05: Maybe here was ineffective assistance for the counsel not to seek an acceleration of the sentencing. [00:12:51] Speaker 05: or in his failure to point out the fact that the plea agreement expected 24 to 30 months, or in failing to argue that anything over 30 would be more than necessary, and especially in failing to object that the government was violating its plea agreement, leaving me here on appeal with, as Judge Millett noted, nothing more than a plain error of standard. [00:13:12] Speaker 05: More should have been done by counsel below. [00:13:14] Speaker 05: Thank you. [00:13:15] Speaker 04: We'll hear from the government. [00:13:19] Speaker 02: morning morning please the court. [00:13:21] Speaker 02: Eric went to the United States. [00:13:25] Speaker 02: Appellant can't show any plain error in the government's execution of the plea agreement or make out a colorable claim of ineffective assistance of the government. [00:13:34] Speaker 04: I'm a little confused by the government's brief, which says even if the parties did not realize [00:13:41] Speaker 04: that the two separate guilty pleas agreed to under his part would increase the applicable guidelines range. [00:13:46] Speaker 04: What did the government realize? [00:13:47] Speaker 04: Did the government know that in fact the sentencing guidelines would be higher at sentencing than the estimated guidelines in the plea agreement? [00:13:57] Speaker 04: What's the fact here? [00:14:01] Speaker 02: It should have been clear to the government at the time. [00:14:04] Speaker 02: I'm not sure what was actually known by the prosecutor. [00:14:08] Speaker 02: It should have been clear that, of course, at the time of the plea, there were zero convictions and a criminal history score of one. [00:14:14] Speaker 02: And that as a condition of the plea agreement, two additional convictions would have to be entered, which would, of course, increase the criminal history score to criminal history score two. [00:14:23] Speaker 02: That was a condition. [00:14:24] Speaker 04: So then why doesn't the plea agreement say, in light of the information now known to the government, [00:14:30] Speaker 04: including the fact that you will be pleading in superior court, your estimated, your criminal history is two, category two. [00:14:39] Speaker 04: Why doesn't it say that? [00:14:41] Speaker 02: I think that the statement that's in the plea agreement was correct at the time of the plea agreement. [00:14:46] Speaker 02: I understand. [00:14:46] Speaker 04: But the purpose of, isn't it correct that the purpose of giving estimated sentencing guidelines is to give both parties an idea of what the ultimate sentence will be, subject to variances, departures, et cetera? [00:14:58] Speaker 02: Yes, Your Honor. [00:14:58] Speaker 04: And that is not what's done here. [00:15:01] Speaker 04: What's done here is to give an estimated guideline that I take it you're saying is absolutely false. [00:15:07] Speaker 04: That is, it's absolutely not true that that will be the estimated guidelines at the time of the sentence. [00:15:15] Speaker 02: I don't think that that's right. [00:15:17] Speaker 02: I think it was true at the time. [00:15:19] Speaker 04: Is there any chance, in the government's view, that it would be true at the time of sentencing? [00:15:24] Speaker 04: That the range would be 24 to 30 months? [00:15:26] Speaker 02: No. [00:15:27] Speaker 04: No chance at all? [00:15:27] Speaker 04: No. [00:15:28] Speaker 04: Well, Ben, don't you think at the minimum that this is misleading? [00:15:33] Speaker 02: I think that I certainly understand the court's concern about that. [00:15:37] Speaker 02: And I think that this is an issue that will help the office think through how to draft these agreements moving forward. [00:15:44] Speaker 02: I don't think, to the extent there's a concern about appellants knowing what he was getting into, I think that the facts of this case, there are several things in the plea agreement, the PSR and the sentencing colloquy, that should give the court confidence that appellant really did understand what he was getting into. [00:15:58] Speaker 04: Well, sensing colloquy is too late. [00:16:00] Speaker 04: He's already entered into the plea agreement. [00:16:02] Speaker 04: So my question is, my question is, why isn't this misleading? [00:16:09] Speaker 04: The estimated guidelines range should indicate what the estimated guideline range is actually going to be. [00:16:17] Speaker 04: Why isn't this a misleading plea agreement? [00:16:19] Speaker 04: At least misleading. [00:16:26] Speaker 04: At worst, if it's ambiguous, then we have to, under our own law, in the Supreme Court law, read it in favor of the defendant. [00:16:34] Speaker 02: If I could take that last point first. [00:16:35] Speaker 02: Yes. [00:16:36] Speaker 02: I think the Supreme Court's case in Puckett addresses this interplay of how the plain error standard works in cases alleged in court. [00:16:44] Speaker 04: I'm not talking about plain error yet. [00:16:45] Speaker 04: First question in plain error is, is there error? [00:16:48] Speaker 04: Right? [00:16:48] Speaker 04: So let's start with error. [00:16:50] Speaker 04: Isn't this misleading? [00:16:52] Speaker 04: And any ambiguity should be read in favor of the defendant here. [00:17:00] Speaker 02: I don't think that this is misleading in that it states an accurate estimate of the guidelines range based on the number of convictions appellant had at the time of the plea. [00:17:10] Speaker 02: And that includes the caveat that if something changes between plea and sentencing. [00:17:15] Speaker 03: It doesn't say if something changes. [00:17:16] Speaker 03: It says discovered. [00:17:19] Speaker 03: How do you define discovered? [00:17:22] Speaker 03: The dictionary says fines unexpectedly. [00:17:26] Speaker 03: Were these other convictions? [00:17:29] Speaker 03: Unexpected under this plea agreement? [00:17:31] Speaker 02: The pleas were not unexpected. [00:17:33] Speaker 02: No, they were not. [00:17:34] Speaker 03: Knowing that they were coming, was that part of the information available at the office at the time? [00:17:39] Speaker 02: It was, Your Honor. [00:17:40] Speaker 02: The convictions, of course, weren't entered. [00:17:43] Speaker 01: I suppose you could say that the convictions themselves hadn't happened yet. [00:17:47] Speaker 01: It's just that it was, the way you're outlining it, it was pretty darn likely and I think certain that they were going to happen. [00:17:55] Speaker 01: So it seems at least incomplete because it's true, it's literally true that based on the information now available to the office, your client has no criminal convictions. [00:18:06] Speaker 01: That seems literally true because there actually were no criminal convictions. [00:18:10] Speaker 01: It's just that everybody understood that additional criminal convictions were going to come about because of the very operation of the agreement. [00:18:18] Speaker 02: That's why I agree with that. [00:18:20] Speaker 01: And there was no contemplation on the part of the government that the sentencing might happen before those guilty pleas was entered such that there still would be zero convictions. [00:18:28] Speaker 01: That's right. [00:18:29] Speaker 01: So everybody understood that the convictions would actually be on the record so that at the time of sentencing there would be more convictions. [00:18:34] Speaker 02: Assuming Appellant went through with his obligations, yes, that is true. [00:18:37] Speaker 02: And, Your Honor, I think if the court does find that it was error, I think the appellant would still have a problem in showing that it was plain error, given that there are different reasonable ways to read the agreement. [00:18:51] Speaker 02: And the Supreme Court has said that if the government has a colorable explanation, even if ultimately inadequate, but a colorable explanation for how its conduct squares with the agreement, [00:19:02] Speaker 02: It suggests it would be impossible. [00:19:03] Speaker 04: Which Supreme Court case used the word colorable? [00:19:06] Speaker 02: In Puckett. [00:19:06] Speaker 02: Uses the word colorable? [00:19:07] Speaker 02: Yes, it does, Your Honor. [00:19:08] Speaker 03: It said... Do you factor into colorable analysis the expected role of the government in candor? [00:19:20] Speaker 03: Not trying to be at least... [00:19:25] Speaker 03: hide the ball at all? [00:19:27] Speaker 03: Shouldn't that be factored? [00:19:28] Speaker 03: I mean, you're held to a higher standard here. [00:19:31] Speaker 03: So how does that get factored into what's vulnerable? [00:19:33] Speaker 02: I think, Your Honor, on the facts here, there's no indication that the government was intending to hide any information from appellant. [00:19:41] Speaker 02: And I think something that really should give us confidence that appellant did understand is that [00:19:47] Speaker 02: He had an opportunity to read the pre-sentence report. [00:19:49] Speaker 02: The pre-sentence report makes clear he and his counsel reviewed it, reviewed the 27 to 33 month calculation, and had no objection to it. [00:19:58] Speaker 03: It was after the plea, correct? [00:19:59] Speaker 03: It was after the plea, but... At the time of the plea, the court itself seemed to read the agreement the way the defendant is. [00:20:06] Speaker 03: It's of transcript page 36. [00:20:09] Speaker 03: They talk about, if the United States Probation Office discovers [00:20:14] Speaker 03: additional convictions that have not been disclosed in your plea agreement. [00:20:20] Speaker 03: The fact that he's going to have these two convictions is disclosed in the plea agreement, right? [00:20:24] Speaker 03: So the district court itself seemed to be reading it. [00:20:27] Speaker 03: So how do we factor that into the plainness of the error? [00:20:31] Speaker 02: I think that that is certainly one factor to consider in terms of whether that is a reasonable way to read the plea agreement, the district court. [00:20:40] Speaker 03: So we're told what the defendant understood. [00:20:42] Speaker 03: And we have evidence as to what the district court understood. [00:20:46] Speaker 03: And we have evidence that the government knew there were two more coming, but maybe was phrasing this in a way to not discuss that, even though it was fully contemplated and in fact required before he would be sentenced. [00:21:05] Speaker 03: And that's still not plain enough. [00:21:08] Speaker 02: I don't think so. [00:21:09] Speaker 02: I think a reasonable way to read the agreement, if perhaps not the best way to read the agreement, is that additional convictions that were actually entered would increase the criminal history. [00:21:20] Speaker 03: When you say reasonable, I'm trying to figure out what you mean, given, again, the standards to which we're going to hold the government for entering a plea agreement. [00:21:29] Speaker 03: Is it the fairest reading of the plea agreement? [00:21:32] Speaker 03: What's the fairest reading of the plea agreement? [00:21:34] Speaker 02: I do think the fairest reading is the agreement said that at the time of the plea there were no convictions and this is what your range would be. [00:21:41] Speaker 02: But something could change. [00:21:42] Speaker 03: It also referenced the information available to you. [00:21:45] Speaker 03: It said convictions estimated herein. [00:21:47] Speaker 03: Herein, the plea agreement, in the exact same language and it used the verb discovered. [00:21:53] Speaker 03: Is it going to say that's the fairest reading of this plea agreement? [00:21:56] Speaker 02: It's certainly a reasonable reading and I understand if the court finds that it was error, even if it finds it was plain error. [00:22:03] Speaker 01: One thing I'm not following is if the agreement was as complete as it could have been. [00:22:09] Speaker 01: which is to say, this agreement itself contemplates the two additional convictions will come on the record. [00:22:14] Speaker 01: When those convictions come on the record, the estimated sentencing range will be different. [00:22:18] Speaker 01: It still couldn't be the case that if the two convictions were accounted for, then the sentencing range would turn out to be 24 to 30 months. [00:22:26] Speaker 01: That's just impossible, as I understand it, right? [00:22:28] Speaker 01: That's right. [00:22:30] Speaker 02: But it did give a baseline to understand [00:22:33] Speaker 02: Given all the other information we know, this is the range. [00:22:36] Speaker 02: Now, if the criminal history score changes, it will change that 24 to 30-month range. [00:22:41] Speaker 01: Right. [00:22:41] Speaker 01: So I guess what I'm trying to say is the error in the agreement would be the failure to account for the reality that everybody understood that two more convictions were coming and that that would affect the range. [00:22:56] Speaker 05: Right. [00:22:56] Speaker 01: The error in the agreement [00:22:59] Speaker 01: I'm not quite understanding how 24 to 30 months then becomes a binding range, because if everything was disclosed, let's just say that the government was obligated, assume for purposes of argument, the government was obligated to acknowledge that two more convictions were coming. [00:23:17] Speaker 01: And everybody should have understood that, and that should have been provided for in the agreement, then we would have all been operating on the basis of perfect information. [00:23:23] Speaker 01: If the answer could not be, then the range would be 24 to 30 months. [00:23:27] Speaker 02: No. [00:23:27] Speaker 01: So the error isn't in the error. [00:23:31] Speaker 01: It's just I'm not sure how you get to the point where the 30 months is binding given that that's not a consequence of complete information. [00:23:39] Speaker 02: Right. [00:23:40] Speaker 02: As I understand it, the claim of area and prejudice is that that estimate somehow bound the government to advocate for no longer than 30 months in its allocution, which is plainly inconsistent with the text of the agreement, which expressly reserves the right to seek a sentence above the 30 months. [00:24:01] Speaker 04: If by variance or departure, which is not what you asked for. [00:24:07] Speaker 02: Well, I do think that what we asked for was a sentence of 33 months based on all of the 3553A factors. [00:24:15] Speaker 02: But it can't be that language. [00:24:16] Speaker 01: It's very hard. [00:24:17] Speaker 01: I know that was your argument in your brief. [00:24:18] Speaker 01: It seems very difficult to say that the language that says the government reserves the right to seek a sentence above the estimated guidelines range is in any way designed to deal with this sort of situation. [00:24:27] Speaker 01: Typically what happens is the range of such and such, everybody agrees on the range, but then other considerations come into play to tell [00:24:34] Speaker 01: the court based on the government's advocacy that the sentence actually should be higher. [00:24:37] Speaker 01: This sort of thing doesn't seem like what was contemplated by that sentence. [00:24:42] Speaker 02: To take the prejudice side of it, I think it's helpful to think through if you accepted Appellant's argument and that the government had to go back [00:24:49] Speaker 02: and tell the court, yes, we estimated a range of 24 to 30 months, something that was already in front of the district court. [00:24:57] Speaker 02: How would that play out? [00:24:58] Speaker 02: We would say we agreed to this estimated range. [00:25:01] Speaker 02: We reserved the right to seek a higher sentence. [00:25:03] Speaker 02: We could go back, seek the 33 months based on all the 3553A factors. [00:25:08] Speaker 02: Of course, nothing the parties agreed to. [00:25:10] Speaker 04: This wasn't an 11- Well, the judge might think that the government is not cutting square corners. [00:25:15] Speaker 04: and under those circumstances might not go above. [00:25:18] Speaker 04: I think if I were a district judge, I'd be pretty upset about this actually. [00:25:22] Speaker 04: And so that would be a reason for the judge to stick to the estimated guidelines as an understanding of what the parties agreed to. [00:25:32] Speaker 04: To the max maybe of the sentencing guidelines, but still all of the sentencing guidelines. [00:25:36] Speaker 02: And, Your Honor, I appreciate that. [00:25:38] Speaker 02: And again, I think this dialogue will be very helpful to our office in terms of thinking through these agreements moving forward. [00:25:44] Speaker 04: Let me ask you two things. [00:25:45] Speaker 04: One is the thing you said about colorables struck me. [00:25:49] Speaker 04: Like, why didn't I see that? [00:25:50] Speaker 04: And I think the reason I didn't see that is that they're not talking in pocket about colorable readings of the plea agreement. [00:25:58] Speaker 04: It says the government will often have a colorable, albeit ultimately inadequate, excuse for its non-performance of an agreement. [00:26:06] Speaker 04: It's not the same thing as saying that any colorful reading of the agreement is not plain air. [00:26:11] Speaker 02: And I think the sentence goes on to talk about... There is no sentence, nothing that goes on. [00:26:15] Speaker 04: It says, see note two supra. [00:26:17] Speaker 02: I'm sorry, and maybe that footnote or otherwise in that paragraph where it says, you know, that will also be the case where the agreement is not a model of clarity. [00:26:26] Speaker 04: Well, it starts by saying, plea agreements are not always a model of draftsmanship, so the scope of the government's commitments will on occasion be open to doubt. [00:26:35] Speaker 04: But the government wasn't. [00:26:36] Speaker 04: But this was a situation where the government did not perform, Puckett was. [00:26:40] Speaker 04: You're saying you are performing, right? [00:26:43] Speaker 02: We are saying we are performing. [00:26:44] Speaker 02: We do say that we are performing. [00:26:46] Speaker 02: I think it's that phrase about how they're not necessary models of draftsmanship. [00:26:51] Speaker 02: And the plain error standard, as the court said, will have bite in those circumstances. [00:26:55] Speaker 02: So here, to the extent that this isn't a plain, that our obligations aren't plain, and there's some room for debate. [00:27:02] Speaker 04: Let me ask one more question. [00:27:06] Speaker 04: Why is the government so sure that the sentence in the Superior Court cases, that the pleas couldn't have come after the sentencing in this case? [00:27:16] Speaker 02: I think that our position would have been that if appellant did not go through with his obligation to plead guilty. [00:27:22] Speaker 04: Where in the sentencing, in the plea agreement, is there an obligation to do that before? [00:27:30] Speaker 02: It's not expressed in the agreement. [00:27:33] Speaker 02: I think there are two places, Your Honor. [00:27:38] Speaker 02: Just to start at the remedies end, I think the government would read the remedies section on page 31 of the record. [00:27:46] Speaker 02: not to obviously give it any remedy for addressing the defendant's failure to plead guilty once sentencing had occurred. [00:27:53] Speaker 02: The remedies that are contemplated in paragraph 11 seem to be that the government could take that into account at the time of sentencing. [00:28:00] Speaker 04: Why? [00:28:00] Speaker 04: Why? [00:28:01] Speaker 04: It says the government will be free from its obligations. [00:28:04] Speaker 04: The client will be fully subject to criminal prosecution for any other crimes, including perjury and obstruction of justice. [00:28:12] Speaker 04: You will be free to use against your client directly or indirectly all statements made by your client. [00:28:17] Speaker 04: So if the defendant doesn't plead the next day, then you go back to the original indictment, you charge him with that, and you charge him with anything else you have. [00:28:27] Speaker 02: I think that would raise at least a serious question about double jeopardy under its rule. [00:28:32] Speaker 04: Well, then the government has drafted a poor plea agreement on its own behalf. [00:28:36] Speaker 04: But I don't see why we have to read. [00:28:38] Speaker 04: You want to read a plea agreement that is, at best, extremely ambiguous in your favor with respect to estimated guidelines. [00:28:47] Speaker 04: But now you want to read a plea agreement that doesn't say one word about timing in your favor rather than in the defendant's favor. [00:28:57] Speaker 04: I just don't see anything in here that would prevent that. [00:29:02] Speaker 02: Well, I think it's important to recognize that the appellant did get significant benefits in exchange for his promise [00:29:12] Speaker 02: to plead guilty in those other cases, those benefits were not only the government's agreement to dismiss an entire Superior Court case, one of the federal charges, but also benefits that he would get at sentencing. [00:29:23] Speaker 04: Well, he would certainly be able to charge him for the other Superior Court case when you have... Right. [00:29:28] Speaker 04: There's no double jeopardy problem for that. [00:29:34] Speaker 02: I haven't thought all the way through that question, but I do think that [00:29:38] Speaker 02: The government would be in a very difficult position. [00:29:40] Speaker 02: I think it would be inconsistent with this agreement to say that it would have to proceed to sentencing to give appellant all of the benefits. [00:29:48] Speaker 02: under the agreement without ensuring that appellant had done his part. [00:29:52] Speaker 04: You can make exactly the opposite argument, that the defendant shouldn't have to go to sentencing until sure that the government does all of its part. [00:30:02] Speaker 04: What if the government, as sentencing, had allocated for a departure and a variance above any estimated range? [00:30:09] Speaker 04: Well, the defendant would say, well, why did I plead to the spirit court counts? [00:30:15] Speaker 02: And I think the appellant was differently situated in the government in that he could move to withdraw the agreement without raising a double jeopardy concern. [00:30:22] Speaker 02: He would be the person putting himself in jeopardy. [00:30:25] Speaker 02: The government would have difficulty [00:30:27] Speaker 01: I mean, if anything, this is an obvious point, but one way the ambiguity is cut is that if you look at the 24 to 30 months, what that would seem to presuppose if everything else could be worked out is that actually the pleas would happen after the sentencing because that's the only way that the agreement works in light of the fact that the pleas were going to come, right? [00:30:46] Speaker 01: Because if the sentencing happened before the guilty pleas in Superior Court happened, then the 24 to 30 months would be right. [00:30:55] Speaker 02: That calculation would be correct. [00:30:58] Speaker 01: Would be correct. [00:30:59] Speaker 01: And so one way to read it is, there's ambiguities all over the place, but I'm just saying that one way to read it is that what you would glean from the 24 to 30 months that's in the agreement is actually that the pleas in Superior Court would happen after because it's the only way to make sense of all the math. [00:31:12] Speaker 02: It's clear, and yes, I think that's right. [00:31:14] Speaker 02: It's clear to me from this discussion that there are certainly multiple reasonable ways to read this. [00:31:19] Speaker 02: And in the posture of this case, where appellant has to make out a plain error and show prejudice, I don't think he can do so. [00:31:28] Speaker 02: The court doesn't have any further questions. [00:31:30] Speaker 02: We would ask that the judgment be affirmed. [00:31:33] Speaker 04: Is there time left for the defense counsel? [00:31:37] Speaker 04: We'll give you another two minutes. [00:31:39] Speaker 05: Thank you. [00:31:40] Speaker 05: I just run of odds and just want to touch on a point you said, discussing what was understood by all the parties at the time of the plea. [00:31:48] Speaker 05: The defendant, his counsel did not know that the new state pleas would necessarily take place before the federal sentencing. [00:31:55] Speaker 05: They were the ones that scheduled the plea, and they're only now saying they would have insisted on that. [00:31:59] Speaker 05: having state pleas before the federal sentencing. [00:32:02] Speaker 05: It was not a condition, it was a condition, but not a precondition in order to get the benefits of the sentencing agreement. [00:32:09] Speaker 05: More importantly, the notion of, well, maybe all that you really needed to do was disclose that in reality what turned out to be 24 instead of 24 to 30 would have been 27 to 33. [00:32:20] Speaker 05: What's the big deal? [00:32:21] Speaker 05: Big deal is we don't know whether this client would have accepted a plea agreement [00:32:27] Speaker 05: with a range estimated of 27 to 33 months. [00:32:30] Speaker 05: I have had clients over three months say, no, I'm not taking that deal. [00:32:34] Speaker 05: And there is no reason to believe that this client would have taken a deal that had a 27 to 33 month range. [00:32:40] Speaker 04: Well, then we face a whole different set up of case law. [00:32:44] Speaker 04: And that case law is whether the [00:32:49] Speaker 04: a reasonable client, you know, unless you actually know what he would do, which we don't have any proper here. [00:32:54] Speaker 05: Fair point. [00:32:55] Speaker 04: We have a small change in the possible sentencing. [00:33:00] Speaker 04: If you take a plea and exposure to a very large risk, if you don't take the plea and [00:33:08] Speaker 04: I don't know what the evidence, because I haven't even looked at it, what the evidence was available. [00:33:14] Speaker 04: Maybe there is no evidence, but we've certainly written several opinions on the subject, right? [00:33:19] Speaker 05: It's a fair point, and there is no evidence in the record that he would not, technically. [00:33:23] Speaker 05: I don't mean to suggest otherwise. [00:33:24] Speaker 05: All I'm saying here, bottom line, is [00:33:27] Speaker 05: The government didn't have to ask for more than 30 months. [00:33:29] Speaker 05: Even under the adjusted sentencing guidelines, it was still a 30-month sentence was within the range. [00:33:35] Speaker 05: The right thing to do here would have been for them to ask for no more than 30 months when that was the deal. [00:33:42] Speaker 05: And there's no way I can explain that. [00:33:43] Speaker 03: I assume you want a sentencing by the, since what they say doesn't mind the district court, I thought the injury to you is that you want a sentencing by the district court with the district court informed of what the correct range is that was agreed to. [00:33:56] Speaker 05: Is that what you want? [00:33:57] Speaker 05: I want the district court to re-sentence with the government indicating that the plea agreement that they are abiding by the plea agreement and making a recommendation of 30 months a 30 month sentence because that was what they deemed and said in the plea agreement was reasonable. [00:34:15] Speaker 03: I don't know why you wouldn't want a resentencing with the correct, the guidelines range in the plea agreement. [00:34:24] Speaker 03: So even if the district court disagrees with what the government's saying, it can't go over 30 months without making the type of findings necessary to go outside the guidelines range. [00:34:35] Speaker 05: That would be acceptable as well, obviously, and probably preferable, because I think, as Judge Srinivasan said, that probably is the best reading of this plea agreement, is that it did contemplate that there would not be two state pleas that would bump the range before the federal sentencing. [00:34:50] Speaker 05: Let me pause over that one. [00:34:52] Speaker 04: That would mean that, would that not mean that the sentencing would go forward on an incorrect estimated, on incorrect sentencing guidelines? [00:35:03] Speaker 04: Regardless of how this got where we are, the accurate sentencing guidelines as of now is the one that includes the bump for the criminal history. [00:35:14] Speaker 04: So we can't, I don't think unless you know of a case, we can't impose on the district court a requirement to use a false or an incorrect sentencing guidelines. [00:35:23] Speaker 04: It's just because both sides estimated incorrectly. [00:35:27] Speaker 04: It seems to me all we can do is advise the district court of this problem of estimation and let that court take it into account. [00:35:33] Speaker 04: Am I wrong about that? [00:35:34] Speaker 05: No, and that was primarily the reason that we argued that it should be remanded for a government recommendation as opposed to readjustment of the sentencing guideline range itself. [00:35:43] Speaker 01: I mean, I think the only way you get there is if you think the agreement can only be read to say that the pleas shouldn't have happened until after the sentencing. [00:35:52] Speaker 05: Well, I think that's the most reasonable reading, Your Honor. [00:35:55] Speaker 05: There was no notice given to this defendant that the DC please had to take place before the federal sentencing. [00:36:04] Speaker 05: And the only way you get to the estimated guideline range is with that assumption. [00:36:10] Speaker 05: And otherwise, if that's not the case, then this really is a bait and switch where they put an estimated range out there they knew was impossible. [00:36:19] Speaker 05: That ought to trouble the court. [00:36:20] Speaker 05: There's no way I can explain that to a client as fair. [00:36:25] Speaker 05: as I said in the career offender example could create potential for great mischief and I encourage the court to take all this into account. [00:36:33] Speaker 04: Do you have any idea, I mean you're an experienced defense counsel, do you have any idea whether this is [00:36:38] Speaker 04: model the agreement that is one that the office uses frequently. [00:36:43] Speaker 04: My guess is that it is, rather than particularly crafted for this case. [00:36:47] Speaker 05: I think that's right. [00:36:48] Speaker 05: I think this is standard language, Your Honor, but all the more reason why it ought to be construed against the draftsman. [00:36:53] Speaker 05: It's their language. [00:36:54] Speaker 05: This ought to be strictly construed against the draftsman. [00:36:57] Speaker 01: But do you know that a standard language and a context in which the agreement itself contemplates superior court convictions? [00:37:04] Speaker 01: Because that's what introduces the wrinkle. [00:37:06] Speaker 01: It might be standard language all the time. [00:37:07] Speaker 01: It's just that you don't – I don't know how often you have these global agreements where – It's not that often, Your Honor. [00:37:12] Speaker 05: And when I say it's standard, it's because I don't know that I've ever had a global plea agreement. [00:37:18] Speaker 05: where this came into play. [00:37:20] Speaker 05: But I've never had a situation either where the goalpost got moved. [00:37:23] Speaker 05: I've never seen a situation like this. [00:37:25] Speaker 05: It's not the norm, but it shouldn't happen. [00:37:28] Speaker 05: It really should. [00:37:29] Speaker 04: Okay, thank you. [00:37:30] Speaker 04: Can I ask, does the U.S. [00:37:31] Speaker 04: Attorney's Office know whether this is a sort of standard form or [00:37:35] Speaker 02: The general language in this agreement, Your Honor, is from a standard plea agreement. [00:37:39] Speaker 02: I think the interplay of how it works with different convictions in different courts is something that may not be unique, but it's certainly not something that happens very often. [00:37:50] Speaker 04: All right. [00:37:50] Speaker 04: Thank you very much. [00:37:50] Speaker 04: We'll take the matter under submission. [00:37:56] Speaker 04: Oh yeah, oh yeah, sorry, sorry, Mr. Smith, thank, where'd you, is it gone already? [00:38:00] Speaker 04: Oh there you are. [00:38:01] Speaker 04: Thank you very much. [00:38:02] Speaker 04: You are appointed counsel by the court and we appreciate your willingness to take on the case.